Ward v. Boone

• Decision Date: 08 February 1960
• Docket Number: No. 5-2078,5-2078
• Citation: 331 S.W.2d 875,231 Ark. 655
• Parties: Carter WARD et al., Appellants, v. E. E. BOONE et al., Appellees.
• Court: Arkansas Supreme Court

Page 875

331 S.W.2d 875

231 Ark. 655

Carter WARD et al., Appellants, v.E. E. BOONE et al., Appellees.

No. 5-2078.

Supreme Court of Arkansas.

Feb. 8, 1960.

Rehearing Denied March 7, 1960.

Ike Murry and John F. Park, Little Rock, for appellants.

Odell Pollard, Searcy, Robert C. Downie, Little Rock, for appellees.

ROBINSON, Justice.

Involved in this appeal are the issues of whether the county court has jurisdiction to hear and determine the outcome of a local option election on the question of the manufacture and sale of intoxicating liquors in White County and whether the complaint contesting the election held in accordance with ActNo. 1 of 1942 as amended by ActNo. 15 of 1955 states a cause of action.The election in issue was held on November 4, 1958.The county election commissioners certified that 3,811 votes were cast for the manufacture and sale of intoxicating liquors and 3,770 votes against the measure.Later the complaint herein was filed in the county court, alleging that the returns as certified were incorrect and that actually a majority of the votes cast were against the manufacture and sale of intoxicating liquors.The appellants demurred to the complaint, contending that the county court does not have jurisdiction of the subject matter and that the complaint does not state a cause of action.The county court overruled the demurrer, and appellants petitioned the circuit court for a writ of prohibition.The petition was denied and petitioners have appealed to this court.

We have held that the county court has jurisdiction in contests of local option elections on the liquor question.Craig v. Barron, 225 Ark. 433, 283 S.W.2d 127;Yarbrough v. Beardon, 206 Ark. 553, 177 S.W.2d 38.But appellants say that the decisions in that respect are not now applicable because of ActNo. 15 of 1955, which provides:

'Section 1.Local option elections, to determine the legality or illegality of the manufacture, sale bartering, loaning, or giving away of intoxicating liquors, shall hereafter be held only on the regular biennial November general election days.

'Section 2.Every petition for a local option election shall be prepared in accordance with Initiated ActNo. 1 of 1942, and it shall be filed, and the subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and ReferendumAmendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.

'Section 3.All laws and parts of laws in conflict herewith are hereby repealed.

'Section 4.Whereas, under the present laws local option elections can be called and held at special elections; and, whereas these elections can be held on regular biennial general election days and thereby save the counties the expense of these elections; now, therefore it is determined by the General Assembly that an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.'

Subsequent to the adoption of Amendment No. 7 to the Constitution of Arkansas--the Initiative and Referendum Amendment--the General Assembly adopted ActNo. 4 of 1935, an enabling act to the Amendment.It consists of 16 sections.Section 13(Ark.Stat. § 2-314) provides: 'The right to contest the returns and certification of the vote cast upon any proposed county act or measure is hereby expressly conferred upon any ten qualified electors and taxpayers of the county.Said contest shall be brought in the chancery court and shall be conducted under statutes and procedure for contesting the election of county officers, except that the complaint shall be filed within sixty days after the certification of said vote and no bond shall be required of the contestants.'

The same session of the General Assembly for the year 1935 adopted ActNo. 108, legalizing the manufacture and sale of intoxicating liquors.The act is very comprehensive and provides for local option elections on the question and for the contest of such elections.Article 7, § 14, par. 1 (Ark.Stat. § 48-820) provides: 'Any election held under this law may be contested as provided for in this section: 1.The contest shall be heard and determined by the same board which, by law, is authorized and empowered to hear and determine a contest of an election for county officers; and the same provisions of the statutes shall apply to the contest of any election held under this law as are provided for the contest of any election for county officers, except as hereinafter provided.'

Ark.Stat. § 3-1205(ActNo. 34 of 1875) provides: 'When the election of any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any other county or township office, the contest of which is not otherwise provided for, shall be contested, it shall be before the county court, * * *.'

Thus it will be seen that ActNo. 108 of 1935 providing for local option elections on the liquor question, when construed along with Ark.Stat. § 3-1205, as it must be, gives the county court jurisdiction to hear and determine election contests in local option elections on the liquor question.But the question here is, does § 2 of ActNo. 15 of 1955 change the law in that respect?The 1955 act provides: 'Every petition for a local option election shall be prepared in accordance with Initiated ActNo. 1 of 1942, and it shall be filed, and the subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and ReferendumAmendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.'

Appellants argue that according to this provision of the statutes a contest of a local option election must be held in the court having jurisdiction to hear contests of county initiative measures as provided by ActNo. 4 of 1935, the enabling act to Amendment No. 7.It will be noted, however, that § 2 of ActNo. 15 of 1955 makes no reference to an election contest.It deals only with the petition for a local option election and provides how it must be prepared and that subsequent proceedings thereon must be conducted in accordance with Amendment No. 7 and the enabling acts pertaining thereto.ActNo. 15 fixes the date for holding a local option election, provides how the petition for such an election must be prepared, and fixes the jurisdiction for 'subsequent proceedings thereupon'--on the petition for the election--and nothing more.The Act does not...